Opinion issued August 4, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-15-00400-CV

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IN RE DAVID W. WARREN, BENEFICIARY OF THE DAVID ABRAHAM 

WEINER 1994 TRUST, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, David W. Warren, has filed a petition for writ of mandamus 

challenging (1) the trial court’s jurisdiction to hear and rule on motions regarding a 

Counter and Cross-Petition filed by the real party in interest after relator’s nonsuit 
2

and (2) the potential disclosure of certain educational records sought in discovery

and reviewed by the trial court in camera.

1 We deny the petition.

Trial Court’s Jurisdiction Following Relator’s Nonsuit. A plaintiff’s 

nonsuit does not affect a defendant’s pending claims for affirmative relief. See

TEX. R. CIV. P. 162 (“Any dismissal pursuant to this rule shall not prejudice the 

right of an adverse party to be heard on a pending claim for affirmative relief or 

excuse the payment of all costs taxed by the clerk.”); Epps v. Fowler, 351 S.W.3d 

862, 868 (Tex. 2011) (“[A] nonsuit does not affect any pending claim for 

affirmative relief or motion for attorney's fees or sanctions.”). Prior to relator’s 

nonsuit, the real party in interest filed his Second Amended Cross-Claims against 

the co-trustee. Real party in interest’s Second Amended Cross-Claims asserted at 

least one independent claim for affirmative relief that was pending at the time of 

relator’s nonsuit. Because the nonsuit did not resolve the pending affirmative 

claim, the nonsuit was not a final order and the trial court’s plenary power did not 

expire thirty days after the order was issued. See TEX. R. CIV. P. 329b(d), 

(e); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95–97 (Tex. 2009) (holding 

that trial court’s plenary power had not expired where order granting nonsuit was 

not final because it did not dispose of all pending matters).

 

1

The underlying case is In re David Abraham Weiner 1994 Trust, cause number 

425,577, pending in the Probate Court No. 4 of Harris County, Texas, the 

Honorable Christine Butts presiding.
3

Production of Relator’s Educational Records. The record contains neither a 

written nor an oral order in the record requiring relator’s educational records to be 

produced. See TEX. R. APP. P. 52.3(k)(l)(A) (appendix to petition for a writ of 

mandamus must contain “a certified or sworn copy of any order complained of, or 

any other document showing the matter complained of”). Although relator asserts 

that the associate trial judge mentioned that the court determined that the records 

should be produced, the record demonstrates that the trial court has not ruled on the 

issue. Rather, the trial court issued an order providing that, after the court’s in 

camera review of the documents, relator would be entitled to raise further written 

objections regarding production of the educational records and that such objections 

would be heard at a subsequent hearing. To the extent that there was an indication 

of the trial court’s intent to rule, an indication of a future intent by the trial court to 

rule is insufficient to grant mandamus relief. See S&A Rest. Corp. v. Leal, 892 

S.W.2d 855, 858 (Tex. 1995) (rendition of judgment is a present act and words 

used by trial court must clearly indicate intent to render judgment at the time the 

words are expressed, as opposed to future intent to render judgment).

Accordingly, we deny the petition for writ of mandamus and lift the stay 

imposed in our April 29, 2015 order.

PER CURIAM

Panel consists of Justices Jennings, Bland, and Brown.